In re Vorck

D. Montana

In re Vorck

235 F. 655, 1916 U.S. Dist. LEXIS 1404

CourtDistrict Court, D. Montana

DecidedAugust 22, 1916

DocketNo. 1464

StatusPublished

This text of 235 F. 655 (In re Vorck) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Vorck, 235 F. 655, 1916 U.S. Dist. LEXIS 1404 (D. Mont. 1916).

Pincite

Opinion

BOURQUIN, District Judge.

Vorck assigned for the equal benefit of his creditors, and within four months thereafter petitioned and was adjudicated bankrupt. In the meantime the assignee paid dividends of 35 per cent, to all creditors known to him. The claim of a creditor so receiving dividends was objected to by a creditor unknown to the assignee, and the referee sustained the objection, in that the assignment was void and the dividends were a preference, and disallowed the claim.

No actual fraud, no intent to hinder, delay, Or defraud creditors, no greater percentage to be received by the creditor claimant than by any other creditor of the same class, and obviously no reasonable cause for such creditor claimant to believe by the assignment and dividends a preference would be effected, appear.

Assignments for benefit of creditors are lawful though acts of bankruptcy, and are not void, but for rather indefinite reasons are held voidable, provided bankruptcy proceedings are initiated within four months from the assignments. Randolph v. Scruggs, 190 U. S. 533, 23 Sup. Ct. 710, 47 L. Ed. 1165. If so avoided, the assignee’s powers are at an end, but his past administration in good faith is lawful and beyond impeachment, save to the extent impeachable if bankruptcy had not intervened.

In the instant case the dividends received by the*' creditor claimant do not come within the Bankruptcy Act’s definition of preferences. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 (Comp. St. 1913, § 9644). They are not preferences, and so are not within the act disallowing Claims unless preferences are surrendered. Undoubtedly, if because of creditors’ neglect to present claims the assignee paid other creditors excessive dividends, the excess is money paid by mistake and can be recovered by the trustee. Bankruptcy proceedings being in equity, this may be directly accomplished by the trustee first paying the neglectful creditors dividends in like proportion to those paid other creditors by the-assignee. If the assets do not admit, though it seems they will, the trustee may proceed against those excessively paid in so far as necessary to make up the deficiency. See Page v. Rogers, 211 U. S. 581, 29 Sup. Ct. 159, 53 L. Ed. 332.

The referee’s order is set aside, and the claim of the petitioner for review will be allowed.

Free access — add to your briefcase to read the full text and ask questions with AI

BOURQUIN, District Judge.

Vorck assigned for the equal benefit of his creditors, and within four months thereafter petitioned and was adjudicated bankrupt. In the meantime the assignee paid dividends of 35 per cent, to all creditors known to him. The claim of a creditor so receiving dividends was objected to by a creditor unknown to the assignee, and the referee sustained the objection, in that the assignment was void and the dividends were a preference, and disallowed the claim.

No actual fraud, no intent to hinder, delay, Or defraud creditors, no greater percentage to be received by the creditor claimant than by any other creditor of the same class, and obviously no reasonable cause for such creditor claimant to believe by the assignment and dividends a preference would be effected, appear.

Assignments for benefit of creditors are lawful though acts of bankruptcy, and are not void, but for rather indefinite reasons are held voidable, provided bankruptcy proceedings are initiated within four months from the assignments. Randolph v. Scruggs, 190 U. S. 533, 23 Sup. Ct. 710, 47 L. Ed. 1165. If so avoided, the assignee’s powers are at an end, but his past administration in good faith is lawful and beyond impeachment, save to the extent impeachable if bankruptcy had not intervened.

In the instant case the dividends received by the*' creditor claimant do not come within the Bankruptcy Act’s definition of preferences. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 (Comp. St. 1913, § 9644). They are not preferences, and so are not within the act disallowing Claims unless preferences are surrendered. Undoubtedly, if because of creditors’ neglect to present claims the assignee paid other creditors excessive dividends, the excess is money paid by mistake and can be recovered by the trustee. Bankruptcy proceedings being in equity, this may be directly accomplished by the trustee first paying the neglectful creditors dividends in like proportion to those paid other creditors by the-assignee. If the assets do not admit, though it seems they will, the trustee may proceed against those excessively paid in so far as necessary to make up the deficiency. See Page v. Rogers, 211 U. S. 581, 29 Sup. Ct. 159, 53 L. Ed. 332.

The referee’s order is set aside, and the claim of the petitioner for review will be allowed.

Cite This Page — Counsel Stack

Bluebook (online)

235 F. 655, 1916 U.S. Dist. LEXIS 1404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vorck-mtd-1916.

Opinion

Related

Cite This Page — Counsel Stack